HomeMy WebLinkAboutContract 54695 CSC No.54695
PERFORMANCE AGREEMENT BETWEEN THE CITY OF FORT WORTH AND
SASHA GEFFEN TO PERFORM FOR THE FORT WORTH PUBLIC LIBRARY
This PERFORMANCE AGREEMENT ("Agreement") is made and entered into by and
between the CITY OF FORT WORTH, a home-rule municipality ("City' , acting by and through
its duly authorized Assistant City Manager,and Sasha Geffen ("Author").
WHEREAS,the City desires to offer programs at the Fort Worth Public Library ("Library's
that contribute to the Library's goal of becoming the literary hub for the City;and
WHEREAS,Author has written a book titled "Glitter Up the Dark: How Pop Music Broke
the Binary";and
WHEREAS, the City desires to host a virtual program for the Author to discuss the book
and participate in a question/answer session; and
WHEREAS,the City wishes to contract with the Author to provide for such services.
NOW, THEREFORE, the City and the Author for and in consideration of the covenants
and agreements hereinafter set forth, the sufficiency of which is hereby acknowledged, agree as
follows:
I.
TIMELINE OF PERFORMANCE
1. Author agrees to participate in a 60 minute virtual program to discuss the book "Glitter Up
the Dark: How Pop Music Broke the Binary" and participate in a question/answer session with
participants ("Performance") to the City at 4:00 p.m. on November 14,2020 ("Performance Date'.
2. If the Performance is rescheduled, for any reason, the parties agree to execute an amendment
to this Agreement setting forth the rescheduled Performance date. If the Author cannot perform on
the rescheduled Performance Date,then the City may terminate this Agreement without penalty.The
City shall have sole discretion to determine the rescheduled Performance Date.
II.
COMPENSATION
1. Author shall provide the performance at no charge to City. City shall not be required to pay
any cost, fee,or charge of any nature for the performance.
2. The City represents that for and in consideration of its obligations under this Agreement,that
the Author is providing a unique and important experience free of charge for the citizens of Fort
Worth to promote literacy and interest in reading and writing.The Author represents that for and in
consideration of its obligations under this Agreement, the City is providing a space for such
presentation to occur which will provide exposure for the Author and the Author's works.Both parties
agree as a condition precedent of this Agreement that both parties have exchanged good and valuable
consideration.
OFFICIAL RECORD
CITY SECRETARY
FT.WORTH, TX
Performance Agreement Page 1 of 9
III.
AUTHOR'S OBLIGATIONS
1. Author agrees to participate in a 60 minute virtual program to discuss the book "Glitter Up
the Dark: How Pop Music Broke the Binary" and participate in a question/answer session with
participants.
2. Author agrees that the Performance will be an online event using City's licensed webinar
solution.
3. Author shall provide a computer, Internet access, and any software needed to remotely join
and deliver the Performance utilizing the City's online webinar environment.
IV.
CITY'S OBLIGATIONS
1. City agrees to designate a representative to coordinate all services to be performed pursuant
to this Agreement.
2. City will provide the necessary access and licenses to host the Performance online. City will
provide log-in information to the Author prior to each Performance Date.
V.
DUTY TO PERFORM/FORCE MAJEURE
The City reserves the right to cancel the Event due to acts of Force Majeure on or near the
Performance Due Date. Acts of Force Majeure shall include,without limitation,severe weather events
such as hurricanes, tornadoes, floods, ice storms, or hail, and disasters such as fires, acts of public
enemy, acts of superior governmental authority, epidemics, pandemics, riots, rebellion, sabotage, or
any similar circumstances not within the reasonable control of either party. Neither City nor Author
shall be deemed in breach of this Agreement if it is prevented from performance by Force Majeure.
VI.
PERMISSION TO USE PHOTOGRAPHS &VIDEOS OR FILMS
By entering into this Agreement, the Author hereby gives its consent and permission to City to use,
display, and publicly play the Performance provided by the Author in perpetuity. Use includes,but is
not limited to,publishing,posting on an official web site,social media outlets or putting on television,
either network or cable or at neighborhood meetings.Author shall require all of its subcontractors to
agree in their subcontracts to allow City use the Performance as included above.
VII.
INDEPENDENT CONTRACTOR
The Author shall operate under this Agreement as an independent contractor and not as an officer,
agent, servant, or employee of City.The Author shall have the exclusive right to control the details of
the work,its subcontractors,and the services performed hereunder.City shall have no right to exercise
any control over or to supervise or regulate the Author in any way other than stated herein. The
Performance Agreement Page 2 of 9
doctrine of Respondeat Superior shall not apply as between the parties, and nothing herein shall be
construed as creating a partnership or joint enterprise between the parties.
VIII.
TERMINATION
1. This Agreement may be terminated by the City without cause with fourteen (14) days written
notice to the Author. This Agreement may also be terminated at any time by the City for cause and
upon notice to the Author.Author may terminate this Agreement with thirty(30) days written notice.
2. If the City terminates this Agreement pursuant to section one of VIII for any reason,City shall
not owe any compensation to the Author.
IX.
LIABILITY/INDEMNIFICATION
1. LIABILITY. THE AUTHOR SHALL BE LIABLE AND RESPONSIBLE FOR ANY
AND ALL PROPERTY LOSS, PROPERTY DAMAGE AND/OR PERSONAL INJURY,
INCLUDING DEATH,TO ANY AND ALL PERSONS,OF ANY KIND OR CHARACTER,
WHETHER REAL OR ASSERTED, TO THE EXTENT CAUSED BY THE ACT(S),
ERRORS, OR OMISSION(S),MALFEASANCE OR INTENTIONAL MISCONDUCT OF
THE AUTHOR,ITS OFFICERS,AGENTS,SERVANTS OR EMPLOYEES.
2. GENERAL INDEMNIFICATION. AUTHOR COVENANTS AND AGREES TO
AND DOES HEREBY INDEMNIFY,HOLD HARMLESS,AND DEFEND,AT ITS OWN
EXPENSE, CITY FROM AND AGAINST ANY AND ALL CLAIMS, LAWSUITS,
JUDGMENTS,ACTIONS,CAUSES OF ACTION,LIENS,LOSSES,EXPENSES,COSTS,
FEES (INCLUDING, BUT NOT LIMITED TO, ATTORNEYS FEES AND COSTS OF
DEFENSE), PROCEEDINGS, DEMANDS, DAMAGES,LIABILITIES,AND/OR SUITS
OF ANY KIND OR NATURE, INCLUDING, BUT NOT LIMITED TO, THOSE FOR
PROPERTY LOSS (INCLUDING, BUT NOT LIMITED TO, WORKERS'
COMPENSATION ACT LIABILITY, LOST PROFITS, AND PROPERTY DAMAGE)
AND/OR PERSONAL INJURY (INCLUDING, BUT NOT LIMITED TO, DEATH) TO
ANY AND ALL PERSONS,OR OTHER HARM FOR WHICH RECOVERY OF DAMAGES
IS SOUGHT, OF WHATSOEVER KIND OR CHARACTER, WHETHER REAL OR
ASSERTED, ARISING OUT OF OR RESULTING FROM ANY ACTS, ERRORS, OR
OMMISSIONS OF AUTHOR AND/OR AUTHOR'S SUBCONTRACTORS AND
CONTRACTORS AND THEIR RESPECTIVE OFFICERS, AGENTS, EMPLOYEES,
DIRECTORS, MEMBERS, PARTNERS,AND REPRESENTATIVES IN CONNECTION
WITH THE EXECUTION, PERFORMANCE, ATTEMPTED PERFORMANCE, OR
NONPERFORMANCE OF THIS AGREEMENT. THIS SHALL ALSO INCLUDE ANY
CLAIMS BY ANY SUBCONTRACTORS BROUGHT AGAINST CITY FOR ANY USE OF
PHOTOGRAPHS,VIDEOS, OR RECORDINGS OF THE PERFORMANCE AND SHALL
ALSO INCLUDE ANY CLAIMS AGAINST CITY BY A SUBCONTRACTOR FOR ANY
CLAIM RELATED TO OR IN CONNECTION WITH THIS AGREEMENT, EXCEPT
THAT THIS SHALL NOT INCLUDE ACTIONS CAUSED BY THE CITY'S OWN
NEGLIGENCE OR WILLFUL CONDUCT.
Performance Agreement Page 3 of 9
3. Intellectual Property. The Author agrees to assume full responsibility for complying with all
State and Federal Intellectual Property Laws and any other regulations, including, but not limited to,
the assumption of any and all responsibilities for paying royalties that are due for the use of other
third-parry copyrighted works by Author. City expressly assumes no obligations,implied or otherwise,
regarding payment or collection of any such fees or financial obligations. City specifically does not
authorize, permit, or condone the reproduction or use of copyrighted materials by Author without
the appropriate licenses or permission being secured by Author in advance. IT IS FURTHER
AGREED THAT AUTHOR SHALL RELEASE, DEFEND, INDEMNIFY, AND HOLD
HARMLESS CITY FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES,
DAMAGES, ACTIONS, OR EXPENSES OF EVERY TYPE AND DESCRIPTION,
INCLUDING, BUT NOT LIMITED TO,ATTORNEYS FEES,TO WHICH THEY MAY
BE SUBJECTED ARISING OUT OF AUTHOR'S USE OF ANY COPYRIGHTED
MATERIAL BY REASON OF AN ALLEGED OR ACTUAL COPYRIGHT VIOLATION
OR OTHER LACK OF OWNERSHIP,AUTHORSHIP, OR ORIGINALITY. City expressly
assumes no obligation to review or obtain appropriate licensing and all such licensing shall be the
exclusive obligation of the Author.
4. IF ANY ACTION OR PROCEEDING SHALL BE BROUGHT BY OR AGAINST
THE CITY IN CONNECTION WITH ANY SUCH LIABILITY OR CLAIM, THE
AUTHOR, ON NOTICE FROM CITY, SHALL DEFEND SUCH ACTION OR
PROCEEDING, AT THE AUTHOR'S EXPENSE, BY OR THROUGH ATTORNEYS
REASONABLY SATISFACTORY TO CITY.
5. IT IS AGREED WITH RESPECT TO ANY LEGAL LIMITATIONS NOW OR
HEREAFTER IN EFFECT AND AFFECTING THE VALIDITY OR
ENFORCEABILITY OF THE INDEMNIFICATION OBLIGATION UNDER THIS
SECTION, SUCH LEGAL LIMITATIONS ARE MADE A PART OF THE
INDEMNIFICATION OBLIGATION AND SHALL OPERATE TO AMEND THE
INDEMNIFICATION OBLIGATION TO THE MINIMUM EXTENT NECESSARY TO
BRING THE PROVISION INTO CONFORMITY WITH THE REQUIREMENTS OF
SUCH LIMITATIONS, AND AS SO MODIFIED, THE INDEMNIFICATION
OBLIGATION SHALL CONTINUE IN FULL FORCE AND EFFECT.
6. Author agrees to and shall release City from any and all liability for injury, death, damage, or
loss to persons or property sustained or caused by Author in connection with or incidental to
performance under this Agreement.
7. Author shall require all of its subcontractors to include in their subcontracts a release and
indemnity in favor of City in substantially the same form as above.
8. All indemnification provisions of this Agreement shall survive the termination or expiration
of this Agreement.
Performance Agreement Page 4 of 9
X.
CORRESPONDENCE
All notices required or permitted under this Agreement shall be conclusively determined to have been
delivered when (i) hand-delivered to the other party, or its authorized agent, employee, servant, or
representative, or (ii) received by the other parry or its authorized agent, employee, servant, or
representative by reliable overnight courier or United States Mail, postage prepaid, return receipt
requested, at the address stated below or to such other address as one party may from time to time
notify the other in writing.
CITY AUTHOR
City of Fort Worth Sasha Geffen
Library Director 1993 S. Oswego Way
500 W 3Cd Street, Aurora, Colorado 80014
Fort Worth,Texas 76102
With copy to:
Assistant City Attorney
200 Texas Street
Fort Worth,Texas 76102
The Author and City agree to notify the other party of any changes in addresses.
XI.
NON-ASSIGNABILITY
This Agreement is non-assignable, and any unauthorized purported assignment or delegation of any
duties hereunder,without the prior written consent of the other parry,shall be void and shall constitute
a material breach of this Agreement. This provision shall not be construed to prohibit the Vendor
from hiring subcontractors.
XII.
ENTIRETY
This Agreement constitutes the entire agreement between the parties hereto with respect to the subject
matter hereof, and no amendment, alteration, or modification of this Agreement shall be valid unless
in each instance such amendment,alteration or modification is expressed in a written instrument,duly
executed and approved by each of the parties. There are no other agreements and understandings,
oral or written,with reference to the subject matter hereof that are not merged herein and superseded
hereby.
XIII.
MODIFICATION
No amendment,modification,or alteration of the terms of this Agreement shall be binding unless the
same is in writing, dated subsequent to the date hereof, and duly executed by the parties hereto.
Performance Agreement Page 5 of 9
XIV.
SEVERABILITY
Should any portion,word, clause, phrase, sentence or paragraph of this Agreement be declared void
or unenforceable, such portion shall be modified or deleted in such a manner as to make this
Agreement, as modified,legal and enforceable to the fullest extent permitted under applicable law.
XV.
GOVERNING LAWNENUE
If any action,whether real or asserted, at law or in equity, arises on the basis of any provision of this
Agreement, venue for such action shall lie in state courts located in Tarrant County, Texas or the
United States District Court for the Northern District of Texas — Fort Worth Division. This
Agreement shall be construed in accordance with the laws of the State of Texas.
XVI.
WAIVER
No waiver of performance by either party shall be construed as or operate as a waiver of any
subsequent default of any terms, covenants, and conditions of this Agreement. The payment or
acceptance of fees for any period after a default shall not be deemed a waiver of any right or acceptance
of defective performance.
XVII.
NO THIRD-PARTY BENEFICIARIES
The provisions and conditions of this Agreement are solely for the benefit of City and the Author,
and any lawful successor or assign,and are not intended to create any rights,contractual or otherwise,
to any other person or entity. The Parties expressly agree that Author's subcontractors are not third-
party beneficiaries and that to the extent any claim is made by a subcontractor,Author shall indemnify
and defend City fully in accordance with section IX of this agreement.
XVIII.
CONTRACT CONSTRUCTION
The Parties acknowledge that each party and, if it so chooses, its counsel have reviewed and revised
this Agreement and that the normal rule of construction to the effect that any ambiguities are to be
resolved against the drafting party must not be employed in the interpretation of this Agreement or
any amendments or exhibits hereto.
XIX.
FISCAL FUNDING OUT
If, for any reason, at any time during any term of this Agreement, the Fort Worth City Council fails
to appropriate funds sufficient for City to fulfill its obligations under this Agreement, City may
terminate this Agreement to be effective on the later of(i) thirty (30) days following delivery by City
to the Author of written notice of City's intention to terminate or (ii) the last date for which funding
has been appropriated by the Fort Worth City Council for the purposes set forth in this Agreement.
Performance Agreement Page 6 of 9
XX.
PROHIBITION ON CONTRACTING WITH COMPANIES THAT BOYCOTT ISRAEL
If Author has fewer than 10 employees or this Agreement is for less than $100,000, this section does
not apply. Author acknowledges that in accordance with Chapter 2270 of the Texas Government
Code,the City is prohibited from entering into a contract with a company for goods or services unless
the contract contains a written verification from the company that it: (1) does not boycott Israel; and
(2)will not boycott Israel during the term of the contract. The terms"boycott Israel"and"company"
shall have the meanings ascribed to those terms in Section 808.001 of the Texas Government Code.
By signing this contract, Author certifies that Author's signature provides written verification to the
City that Author: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the
contract.
XXI.
AUDIT
The Author agrees that City will have the right to audit the financial and business records of the
Author that relate to any payment from City to Author pursuant to this Agreement (collectively
"Records' at any time during the Term of this Agreement and for three (3) years thereafter in order
to determine compliance with this Agreement. The Parties acknowledge that no payment is being
made pursuant to this Agreement.
XXII.
COUNTERPARTS AND ELECTRONIC SIGNATURES
This Agreement may be executed in several counterparts, each of which will be deemed an original,
but all of which together will constitute one and the same instrument. A signature received via
facsimile or electronically via email shall be as legally binding for all purposes as an original signature.
XXIII.
NON-DISCRIMINATION
In the execution, performance, or attempted performance of this Agreement, the Author will not
discriminate against any person or persons because of disability,age, familial status, sex,race,religion,
color, national origin, or sexual orientation, nor will the Author permit its officers, agents, servants,
employees, or subcontractors to engage in such discrimination. This Agreement is made and entered
into with reference specifically to Chapter 17,Article III, Division 3, of the City Code of the City of
Fort Worth("Discrimination in Employment Practices"),and the Author hereby covenants and agrees
that the Author, its officers, agents, employees, and subcontractors have fully complied with all
provisions of same and that no employee or employee-applicant has been discriminated against by
either the Author,its officers, agents, employees, or subcontractors.
XXIV.
GOVERNMENTAL POWERS
Both Parties agree and understand that the City does not waive or surrender any of its governmental
powers by execution of this Agreement.
Performance Agreement Page 7 of 9
XXV.
HEADINGS NOT CONTROLLING
Headings and titles used in this Agreement are for reference purposes only and shall not be deemed a
part of this Agreement.
XXVI.
REVIEW OF COUNSEL
The Parties acknowledge that each parry and its counsel have reviewed and revised this Agreement
and that the normal rules of construction to the effect that any ambiguities are to be resolved against
the drafting parry shall not be employed in the interpretation of this Agreement or exhibits hereto.
XXVII.
LICENSES,PERMITS AND FEES/COMPLIANCE WITH LAWS
1. The Author agrees to obtain and pay for all applicable licenses,permits, certificates,
inspections, and all other fees required by law necessary to perform the services prescribed for the
Author to perform hereunder.
2. This Agreement is subject to all applicable federal, state, and local laws, ordinances,rules,
and regulations,including,without limitation, all provisions of the City's Charter and ordinances, as
amended.
XXVIII.
CONDITION OF THE FACILITY/WARRANTIES EXCLUDED
If the Performance occurs on City property or is provided by the City, the following provision shall
apply.The Author hereby represents that they have inspected the facilities at the Event Site intended
for the performance, including any improvements thereon, and that the Author finds same suitable
for all activities and operations agreed to hereunder, and that the Author does so on an "as is"
condition. The City hereby expressly excludes any and all warranties in regard to the facilities,
including,without limitation, fitness for any particular purpose.
XXIM
SIGNATURE AUTHORITY
The person signing this Agreement hereby warrants that they have the legal authority to execute this
Agreement on behalf of his or her respective party, and that such binding authority has been granted
by proper order,resolution,ordinance or other authorization of the person or entity. The other Parry
is fully entitled to rely on this warranty and representation in entering into this Agreement. Should
that person or entity not be authorized, the terms and conditions of this Agreement shall be binding
as against the signatore and they shall be subject to the terms and conditions of this Agreement.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
[SIGNATURE PAGE FOLLOWS]
Performance Agreement Page 8 of 9
IN WITNESS WHEREOF, the parties hereto have executed this agreement in multiples, this 16
day of October ,2020.
CITY OF FORT WORTH AUTHOR
byDana Burghdoff(O 16,20201 :08 CDT) by:Sasha Geffen(Oct 15,202017:15 MDT)
Dana Burghdoff Name: Sasha Geffen
Assistant City Manager Title:Author
Recommended by:
�744'—
Marilyn Marvin
Assistant Library Director
APPROVED AS TO FORM AND LEGALITY
by.
/ k.
Jessika J.Williams
Assistant City Attorney
Ordinance No. 24161-04-2020 4aa��nagIl
ATTEST: s°(°"*- 00,0*
FORr�yaa�o
d
d~ 8p•1dd
�v8a=c
0
far Ronald P. Gonzales o'* �d
for Ronald P.Gonzales(Oct 16,202017:26 CDT) da ..000000° a
Mary Kayser nEXASoap
City Secretary
M&C—No M&C Required
Contract Compliance Manager:
By signing I acknowledge that I am the person responsible
for the monitoring and administration of this contract,including
ensuring all performance and reporting requirements.
Timothy Shidal
Administrative Services Manager OFFICIAL RECORD
CITY SECRETARY
FT.WORTH,TX
Performance Agreement Page 9 of 9